pensation law, but similar laws have been enacted in many other states and also by Congress without incurring judicial condemnation. Probably nothing has injured the prestige of certain state courts more seriously than their refusal to enforce laws, involving an alleged unreasonable exercise of the police power, which the courts of other states and of the United States have declared constitutionally unobjectionable. The result of such decisions in many states has been to create grave uncertainty as to the limits of legislative power to deal with social and industrial conditions and to cause excessive delay in putting into effect remedial legislation demanded by a strong and preponderant opinion among the people. The modern development of the rule of reason has doubtless greatly increased the scope and importance of the judicial veto, but its injudicious use has seriously impaired popular confidence in the courts, particularly in certain states.1 JUDICIAL REVIEW OF THE VALIDITY OF LEGISLATIVE PROCEDURE A second source of the recent growth in the political power of the courts, which also has occasioned criticism of their use of the judicial veto, is to be found in the constitutional limitations upon the forms of legislation and legislative procedure. The principal limitations upon the forms of legislation are the provisions that the subject of an act shall be expressed in the title, and that the act shall not embrace more than one subject, found in about two-thirds of the constitutions, and the provisions forbidding the amendment of acts by mere reference to title, found in nearly half of the constitutions. These limitations were adopted to protect honest legislators against fraud and surprise, and to stop the practice of logrolling. They undoubtedly inculcate a sound legislative practice, and if not construed too literally by the courts, tend to encourage clearness as well as honesty in legislation. Unfortunately they have been construed too literally by the courts of some states, giving rise to an enormous amount of litigation, and leading to the nullification of beneficial as well as undesirable statutes. An eminent authority notes 1 See Jane Addams, in American Journal of Sociology, xiii, p. 772. culminated in a demand for more direct popular control of the judiciary. The first method of direct popular control advocated by the critics of the judiciary was the recall of judges. As has already been stated, six of the ten states which have adopted the popular recall of state officials included judges among the officials subject to recall. Hitherto, however, the recall has been utilized to remove judges from office even less than in the case of other state officials. No judge has yet been recalled because of popular dissatisfaction with a decision involving any question of constitutional interpretation. The first instance of the popular recall of a judge occurred in California. The judge of a lower court reduced to a nominal sum the bail originally required of a prisoner awaiting trial for a serious offense. Thereupon the prisoner fled. The judge was charged with collusion in the prisoner's escape, and was recalled by the indignant people of his district. The recall has not yet even been invoked against a member of any superior or supreme court. In short, the recall of judges, like the recall of state officials generally, seems likely to be little used. Another method of direct popular control is the recall of judicial decisions. The recall of judicial decisions was first suggested by Theodore Roosevelt in an address before the Ohio constitutional convention of 1912. The plan, as finally explained in his address before the Progressive National Convention the same year, was as follows:- "The people themselves must be the ultimate makers of their own constitution, and where their agents differ in their interpretations of the constitution the people themselves should be given the chance, after full and deliberate judgment, authoritatively to settle what interpretation it is that their representatives shall thereafter adopt as binding. Whenever in our constitutional system of government there exist general prohibitions that, as interpreted by the courts, nullify, or may be used to nullify, specific laws passed, and admittedly passed, in the interest of social justice, we are for such immediate law or amendment to the constitution, if that be necessary, as will thereafter permit a reference to the people of the public effect of such decision under forms securing full deliberation, to the end that the specific act of the legislative branch of the government, thus judicially nullified, and such amendments thereof as pensation law, but similar laws have been enacted in many other states and also by Congress without incurring judicial condemnation. Probably nothing has injured the prestige of certain state courts more seriously than their refusal to enforce laws, involving an alleged unreasonable exercise of the police power, which the courts of other states and of the United States have declared constitutionally unobjectionable. The result of such decisions in many states has been to create grave uncertainty as to the limits of legislative power to deal with social and industrial conditions and to cause excessive delay in putting into effect remedial legislation demanded by a strong and preponderant opinion among the people. The modern development of the rule of reason has doubtless greatly increased the scope and importance of the judicial veto, but its injudicious use has seriously impaired popular confidence in the courts, particularly in certain states.1 JUDICIAL REVIEW OF THE VALIDITY OF LEGISLATIVE PROCEDURE A second source of the recent growth in the political power of the courts, which also has occasioned criticism of their use of the judicial veto, is to be found in the constitutional limitations upon the forms of legislation and legislative procedure. The principal limitations upon the forms of legislation are the provisions that the subject of an act shall be expressed in the title, and that the act shall not embrace more than one subject, found in about two-thirds of the constitutions, and the provisions forbidding the amendment of acts by mere reference to title, found in nearly half of the constitutions. These limitations were adopted to protect honest legislators against fraud and surprise, and to stop the practice of logrolling. They undoubtedly inculcate a sound legislative practice, and if not construed too literally by the courts, tend to encourage clearness as well as honesty in legislation. Unfortunately they have been construed too literally by the courts of some states, giving rise to an enormous amount of litigation, and leading to the nullification of beneficial as well as undesirable statutes. An eminent authority notes 1 See Jane Addams, in American Journal of Sociology, xiii, p. 772. 1 that "while the courts lean to a liberal construction, they have in a minority of cases been indefensibly and even preposterously technical." In recent years there has been an astonishing number of acts vetoed by the courts on account of purely formal defects, especially in certain states of the South and West. On the whole, however, the limitations upon the forms of legislation have been of less consequence, as applied by the courts, than those upon legislative procedure. The principal procedural requirements are these: that bills shall be read three separate times, or that they shall be read on three separate days, or that they shall be read three times in full; that they shall be referred to legislative committees and duly reported by the same; that they shall not be introduced after a stated period; that rejected measures shall not be reintroduced in the same session; that a motion to reconsider shall not be entertained on the same day; that bills shall not be so amended as to alter the subject thereof; that bills and all amendments shall be printed; that they shall be on the desks of members in their final form three days before their final passage; that a majority of all the members be required for passing a bill; that the final vote be by yeas and nays and be entered on the journal; and that the signature of the presiding officer must be affixed in open session. Some of these provisions are salutary, and their fulfillment can be readily verified by examining the journals, such as the requirements relating to the final vote on the passage of a bill. Others, however, are impracticable, and in practice are regularly evaded, such as the requirement that a bill be read three times in full. Compliance with the constitutional requirement in such cases becomes perfunctory or is frankly ignored. In the latter case the necessary fraud may be covered up by a false entry on the journal. The requirement that no amendment be entertained which alters the subject of a bill gives rise to exceedingly difficult questions of construction, which are highly unsuitable for judicial review. In many states the judicial veto is freely employed to condemn measures for procedural defects, often without much or any regard for their 1 See E. Freund, "The Problem of Adequate Legislative Powers under State Constitutions," in Publications of the New York State Constitutional Convention Commission, Papers on Special Topics, pt. i, p. 107. real merits. In Alabama and Mississippi, for example, during five recent years nearly two score of legislative acts were declared unconstitutional by the state courts, mostly on account of formal or procedural defects. A recent and judicious critic of the work of the courts suggests that the trouble lies in the constitutions themselves as well as in the courts." "The sound policy of constitution-making is to impose procedural requirements only under the following conditions: (1) that they serve an object of vital importance; (2) that they can be complied with without unduly impeding business; (3) that they are not susceptible of evasion by purely formal compliance or by false journal entries; (4) that they do not raise difficult questions of construction; and (5) that the fact of compliance or non-compliance can be readily ascertained by an inspection of the journal. The application of these tests would lead to the discarding of most of the existing provisions. . . As to those retained, the judicial power to enforce compliance should be limited." Professor Freund's suggestions for the limitation of the power of judicial review are, that the validity of a statute should not be questioned on account of procedural defects after the expiry of a short period from the date of its enactment, or that no statute should be questioned at all for procedural or formal defects, if the attorney-general, prior to approval by the governor, has certified that the form and procedure are constitutionally correct. In short, relief from the evils of the injudicious use of the judicial veto on account of technicalities should be sought by increasing executive responsibility for the technical perfection of legislation. REFORM OF THE JUDICIAL VETO Many of the recent critics of the state judiciaries have demanded more drastic remedies for the abuse of the judicial veto. The belief that technical justice too frequently was substituted for substantial justice, and especially the belief that the rule of reason, as applied by the courts, too frequently was unreasonable, 1 For a particularly flagrant case of the judicial veto on technical grounds, contrary to the merits, see Koehler and Lange v. Hill, 60 Iowa, 543 (1883), cited in Thayer's Cases on Constitutional Law, i, p. 252. 2 See E. Freund, op. cit., p. 104. |